Case shows reasonable expectation for testator to divide estate between children equally: lawyer

Court finds no basis for good parent to favour child with no financial pressures over child who has

Case shows reasonable expectation for testator to divide estate between children equally: lawyer
James Zaitsoff is a shareholder of Owen Bird Law Corporation

While a testator is not required to treat their children equally, there is a reasonable expectation for children to share equally in the parent’s estate, so without extenuating circumstances, a court may issue such an order, a recent case highlights.

James Zaitsoff, shareholder of Owen Bird Law Corporation, wrote a case comment about Scurek v. Scurek, 2021 BCCA 178, which explores this subject.

“The case also serves as a reminder that the court must look at the circumstances of the parties at the time of death, not the time of the making of the will when considering what variation is appropriate,” Zaitsoff says. “For example, the plaintiff’s circumstances may worsen considerably between the date the will is made and the date of the will-maker’s death, giving the plaintiff a stronger argument for a variation in their favour.”

In Scurek, the testator died in 2017, leaving an estate valued at approximately $1,900,000. His will provided that one‑half of the residue of his estate would go to his son, the appellant in this case. His daughter, the respondent, and her two sons would each receive one‑sixth of the residue.

The testator’s son received Canada Pension Plan disability benefits and had substantial assets and a comfortable income. The daughter, who was unemployable, who possessed no significant assets and received a modest disability pension, filed an action to vary the will under s. 60 of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13.

The Supreme Court of British Columbia issued an order varying the will, vesting one‑third of the residue to the son, one‑half to the daughter and one‑twelfth to each of the two grandsons because the will failed to provide for the support of the daughter adequately. The son thus appealed the order under s. 72 of the Act.

The Court of Appeal for British Columbia partly allowed the appeal, agreeing to vest each of the grandsons with one-twelfth of the residue but varying the estate by dividing the balance equally between the son and the daughter, as this division would permit an adequate, just and equitable provision for the daughter. The appellate court found that, while the will did not sufficiently provide for the daughter, reducing the son’s share below the daughter’s share unnecessarily breached the testator’s autonomy.

The appellate court ruled that the daughter was owed a moral obligation under the Act and had a real need of assistance. On the other hand, the court found no objective basis for a good or judicious parent to favour a child with no financial pressures or burdens over a child with meagre resources and without employment.

“This case was interesting because the court had ‘no difficulty’ finding that the will did not make adequate provision for the plaintiff, and so the will had to be varied,” Zaitsoff says of this decision. “However, the court felt that varying the will to give the plaintiff a greater share of the estate than her brother (which the trial judge ordered) would go too far – it was too great an impingement of testamentary autonomy.”

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